The Mahlum Vs. Dow case

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Admitting Scientific Evidence: Exploring the Ramifications of the Nevada Supreme Court’s Rejection of the Daubert Doctrine©1999 Nevada Bar JournalGeoffrey White, Esq.May 1999

IntroductionPlaintiffs’ attorneys, insurance defense attorneys, district attorneys, criminal defense attorneys and any attorneys who try cases involving the admissibility of scientific evidence before a jury would be well advised to read the Nevada Supreme Court’s recent decision in Mahlum v. Dow Chemical, 114 Nev.Adv.Op. 155 (Case No. 28600, December 31, 1998). In Mahlum, a majority of the Nevada Supreme Court affirmed Charlotte Mahlum’s $4.2 million dollar jury verdict against the Dow Chemical Company, based on negligence.1

Regarding the critical causation issue — whether or not leaking and ruptured silicone breast implants caused Ms. Mahlum’s atypical auto-immune disease and multiple sclerosis-like condition — the court, without dissent on this issue, affirmed the jury’s causation finding, based on scientific and medical expert testimony that silicone migrates throughout the body and causes disease. 114 Nev.Adv.Op. 155, pp. 7-10. The court declined to follow the controversial decision of the U.S. Supreme Court regarding the admissibility of scientific evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1973).2 114 Nev.Adv.Op. 155, p. 8, fn. 3. The Nevada Supreme Court found existing Nevada case law on expert testimony sufficient to govern the case.

Factual and procedural backgroundFollowing a double mastectomy in 1985, Charlotte Mahlum, at the age of 36, had Dow Corning silicone breast implants inserted into her body. Shortly after insertion, these implants began to leak. In 1990, her health began to deteriorate. In 1993, one of the implants ruptured, requiring surgical removal of both implants. The surgeon was unable to remove all of the silicone gel from Mahlum’s body, leaving “10% of the silicone materials embedded in muscle, tissue and blood vessels under her arms and ribs.” 114 Nev.Adv.Op. 155, pp. 5,6.

In 1993, Mahlum and her husband filed a negligence and fraud lawsuit against Dow Corning and its parent corporation, Dow Chemical, alleging that in addition to rupture and disfigurement damages, she had developed an auto-immune disease from the implants. On May 15, 1995, Dow Corning filed for bankruptcy protection. Trial commenced in October 1995 against the remaining defendant, Dow Chemical. Four weeks later, following the presentation of much scientific and medical expert testimony, the jury awarded Ms. Mahlum $3.95 million dollars in compensatory damages, and awarded her husband $200,000 for loss of consortium.3 Id., p. 10.

While several theories of liability were pled, the judgment was affirmed as to only one theory, negligent undertaking. The Nevada Supreme Court noted that “[a]ll of the Mahlums’ tort claims were based, ultimately, on the assumption that Mahlum’s injuries were proximately caused by defective silicone breast implants.” 114 Nev.Adv.Op. 155, p. 10.

In affirming the compensatory damage and loss of consortium award, the court found “substantial evidence in the record supports the judgment against Dow Chemical on the claim of negligent performance of an undertaking.” 114 Nev.Adv.Op. 155, p. 7. In its opinion, the court focused first on causation.

What medical testimony is legally sufficient to show that a substance caused a diseaseIn any case alleging that a drug, medical product, environmental contaminant or toxic spill caused illness, the plaintiff or plaintiffs are required to show that “but for” the drug, product, contaminant or toxin, the illness “would not have occurred.” 114 Nev.Adv.Op. 155, p. 12.4 The Nevada Supreme Court “conclud[ed] that the Mahlums introduced substantial evidence that Dow Corning’s defective breast implants caused her illnesses.” Id., p. 8. The following factors, discussed in the Mahlum opinion, demonstrate what is necessary for plaintiffs to meet their burden of proof on causation.

1. Plausibility: Whether the substance, in the abstract, is capableof causing symptoms and diseaseThis factor is often called the, “Can it?” as opposed to the, “Did it?” causation test. In Mahlum, the court dissected the testimony of plaintiff’s treating physicians, including a noted immunologist from U.C. , Dr. Gershwin. The court noted that Dr. Gershwin, “author of a number of articles about silicone and the immune system, testified that liquid silicone impairs the body’s immune system.” 114 Nev.Adv.Op. 155, pp. 8-9. The court focused on the mechanism by which liquid silicone, in the abstract, could cause disease:“Liquid silicone...causes the body to create autoantibodies that attack the body’s own organs and tissues. In essence, autoantibodies cause the human body to turn on itself. When silicone bleeds from the breast implant, it can enter the lymph nodes and from there travel to other organs, including the heart, the lungs, the nerves and the brain. The lymph nodes try to cleanse the body of silicone oil, but cannot.” 114 Nev.Adv.Op. 155, p. 9.

The court went on to note how this process manifests itself as disease, including but not limited to the testimony of plaintiff’s treating Nevada rheumatologist (Dr. Atcheson) and neurologist (Dr. Eaton) that, in their clinical experience, women with silicone breast implants demonstrate “similar nervous system disorders and autoimmune diseases” and an “atypical autoimmune disease.” The court noted Dr. Atcheson’s treatment of “over one hundred women who had silicone gel breast implants,” and his observation that these women “displayed symptoms of fatigue, joint and muscle pain, sleep disturbances, hair loss, skin rashes, dryness of the eyes and mouth, and numbness and tingling in their hands and feet.” 114 Nev.Adv.Op. 155, pp. 9-10.

To show a substance is capable of causing disease, plaintiff’s counsel must elicit expert testimony from plaintiff’s treating physicians or other scientists demonstrating that the substance itself can cause illness, the mechanism of how that substance can cause illness, and the manifestation of that mechanism, i.e. the symptoms which can be caused thereby.

2. Whether and how the plaintiff was actually exposed to the allegedly harmful substanceTo prove exposure, the plaintiff must show that her body came into contact with the substance deemed capable of causing disease. Sometimes this can be shown inferentially, as when a toxic cloud passes over a community, the plaintiff was in the path of that cloud, and demonstrates symptoms consistent with toxic exposure. In Mahlum, in view of the direct evidence of exposure, no inference was necessary. The Nevada Supreme Court, noting the testimony of the surgeon who removed Ms. Mahlum’s breast implants and examined the surrounding tissue, explained:

“. . . Silicone Gel probably bled from the breast implants shortly after implantation, and Mahlum’s left breast implant later ruptured and spilled silicone gel into her body. The explantation surgeon was unable to remove all of the silicone gel from Mahlum’s chest, and left approximately ten percent of the silicone imbedded in muscle, tissue and blood vessels under her arms and ribs. . .” 114 Nev.Adv.Op. 155, p. 8.

The best evidence of exposure, as was found in Mahlum, is to find the substance still in the body, and evidence of inflammation or injury to the human tissues surrounding the substance. Absent this, the plaintiff’s lawyer must rely on inference to prove exposure. The defendant’s lawyer can rebut that inference by demonstrating an alternative, plausible explanation for the plaintiff’s illness inconsistent with plaintiff’s exposure theory.

3. The temporal association between the exposure to the substance and the illnessObviously, a plaintiff who had the same or similar symptoms prior to being exposed to a substance capable of causing illness will have a harder time proving to a jury that the symptoms and illness that followed the exposure were caused by the exposure. A better case can be made when new symptoms and new illness follows the exposure, even if, as in Mahlum, there was a latency period of years between the exposure and the symptomology.

The Nevada Supreme Court noted that Charlotte Mahlum “developed myriad illnesses following breast implant surgery [1985],” and that her “health continued to deteriorate after the [1993] explantation surgery.” 114 Nev.Adv.Op. 155, p. 8. The court noted that “y 1995, Mahlum experienced shaking spells, itching, tingling in her hands and feet, slurring of her speech, seizures, discoloration in her hands and legs, headaches, dry eyes, loss of hair, memory loss, sleeplessness, pain in her joints, armpits and chest and loss of coordination.” Id., p. 8. The court further noted that “[t]he trial evidence was substantial in showing that Mahlum’s current health problems manifested themselves around the time the left breast implant ruptured and released its silicone gel into her body.” Id., p. 8. The record on appeal showed that the only one of these symptoms Ms. Mahlum had before being implanted was headaches associated with colds and flu.

Thus, it is important for plaintiff’s counsel to show that most, if not all, of the constellation of symptoms constituting the claimed illness occurred following, not before, the exposure to the allegedly toxic substance. Defendant’s counsel can and should scan the plaintiff’s medical records with a fine-toothed comb looking for evidence of presently claimed symptoms that existed before the exposure to the substance.

In sum, in proving or disproving a toxic exposure case, Nevada practitioners should pay particular attention to the three factors enumerated above in order to show that a particular substance did, or did not, cause illness in a particular individual.

Life after Daubert: good news for judges and juriesThe philosophy expressed by the Nevada Supreme Court in Mahlum was decidedly in favor of a litigant’s right to have his or her case decided by a jury of his or her peers, and of allowing that jury broad access to expert testimony. The court reaffirmed that “[o]nce the district court certifies an expert as qualified, the expert may testify as to all matters within the expert’s experience and training. 114 Nev.Adv.Op. 155, p. 8.

However, the court’s rejection of Daubert was not absolute. The court noted:

“. . .We believe that the Daubert doctrine is a work in progress and that we should observe the doctrine’s further development in the federal courts before concluding that Daubert should be adopted as the law of this state. Above all, we do not presently perceive a need to adopt Daubert, based on our perception of developments in Nevada law, and we therefore decline to do so.” 114 Nev.Adv.Op. 155, p. 8, fn. 3.

The practical ramifications of this declination are enormous. In the last few years in Nevada courtrooms, counsel on both sides of the aisle have attempted to use Daubert as a sword to keep from the jury evidence that their side believes is detrimental to their chance of success. In a recent breast implant case unrelated to Mahlum, this writer used Daubert to keep the jury from hearing certain epidemiology studies which, in plaintiff’s view, were untrustworthy and based on flawed methodology. Defense lawyers in that case also argued that Daubert should preclude the jury from hearing certain plaintiff’s expert witnesses because, from the defendant’s viewpoint, these experts’ methodology was flawed. That case became a trial judge’s nightmare, repeatedly continued and mired in motions.

Daubert motions can add needless complexity to an already complex trial, often resulting in a trial judge having to try a complex medical products liability case twice. First, both sides’ attorneys file a separate and lengthy Daubert motion on each expert sought to be excluded, attaching deposition transcripts in which the experts have testified in similar cases across the country, and pointing out alleged inconsistencies. Second, the opposing side files separate and lengthy opposition briefs arguing against the exclusion of their experts, attaching key portions of the deposition transcripts omitted by the other side, as well as other deposition transcripts of these experts. Third, after reply briefs, the trial court usually must conduct lengthy “Daubert hearings,” up to a week in length. The side seeking to defend its experts (or both sides, if both sides have filed competing Daubert motions) flies its experts to the hearing so that they can testify and be cross-examined before the trial judge. The trial judge and his or her law clerk, most of whom have solid legal backgrounds but are not versed in physics, science and medicine, read the motions, oppositions and replies, and then preside over lengthy and tedious inquisitions into the relative merits, or lack thereof, of each expert’s “methodology” in arriving at his or her conclusions. More often than not, when the battle ends, most experts pass muster under Daubert.5 If they “pass,” the jury is “allowed” to hear their testimony.

This does not mean “anything goes.” Practitioners attempting to prove or disprove a toxic exposure case must still retain experts who have “special knowledge, skill, experience, training or education” to qualify as an expert. NRS 50.275, Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992). Further, the expert’s testimony should be confined to “matters within the scope of such knowledge.” Id. As has been the practice for decades in this state, during the trial, lawyers are free to briefly voire dire the expert outside the presence of the jury. The trial court can exclude an expert who is not qualified or seeks to testify in an area where the expert has little or no knowledge. Cheyenne Construction v. Hozz, 102 Nev. 308, 720 P.2d 1224 (1986), Brown v. Capanna, 105 Nev. 665, 782 P.2d 1299 (1989).

Probability vs. scientific certainty: a key distinctionIn a civil trial, the plaintiff’s burden on causation is to show that, more likely than not, the product or substance alleged to be harmful caused injury or illness to the plaintiff. Trial lawyers sometimes call this the “probable cause rule” or the “51% rule.” However, in the scientific community, a drug, product or substance is generally not deemed to have caused injury unless that proposition is scientifically certain, i.e. to at least a 95 percent probability. Right or wrong, as of the date of the Nevada Supreme Court’s opinion in Mahlum (12/31/98), the scientific community had not yet reached a consensus that silicone gel breast implants were capable of causing disease. Without listing here hundreds of medical articles, suffice it to say there is strong scientific disagreement on this issue. The Nevada Supreme Court took note of this, and how this controversy relates to a plaintiff’s burden of proof in the courtroom:“ We are aware that causation is a scientifically controversial component of the plaintiff’s case in breast implant litigation. The Mahlums, however, did not need to wait until the scientific community developed a consensus that breast implants caused her diseases. If she had, it might have been too late to recover, in light of the doctrine of laches and statutes of limitation and repose. The Mahlums’ complaint was not tried in the court of scientific opinion, but before a jury of her peers who considered the evidence and concluded that Dow Corning silicone gel breast implants caused her injuries. The jury in this case was properly instructed to consider the proof by a preponderance of the evidence. There is no evidence that the jury did otherwise. Science may properly require a higher standard of proof before declaring the truth, but that standard did not guide the jury, nor do we use that standard to evaluate the judgment on appeal. . .” 114 Nev.Adv.Op. 155, p. 10.

The Nevada practitioner should remain aware of the important distinction between what is required in the scientific community to prove or disprove a theory versus what is required in the courtroom, and the reason for the differing levels of probability.

ConclusionThe Mahlum opinion provides the Nevada practitioner important guidance as to what is and is not necessary to prove that a substance causes disease. It should be read in conjunction with NRS 50.275 and existing Nevada case law regarding the admissibility of expert testimony. The Nevada Supreme Court’s decision not to adopt Daubert will in all likelihood conserve judicial resources. More importantly, parties with limited financial resources will not be burdened by having to have the causation portion of their case tried twice.

Geoffrey White is a trial lawyer and partner at White & Meaney in Reno. His law firm emphasizes complex medical products and malpractice litigation. He has successfully made, and defended against, Daubert motions in Nevada State courts, including Mahlum v. Dow Chemical. He has briefed and argued several complex medical cases before the Supreme Court of Nevada.